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July 7, 2011

New York Times editorial urges SCOTUS to delay Texas execution of Mexican national

In this new editorial, headlined "The World Is Watching," the New York Times weighs in on the international kerfuffle over a planned Texas execution today.  Here are excerpts:

On Thursday, Humberto Leal Garcia Jr. is scheduled to be executed in Texas at 6 p.m.  Mr. Leal, a Mexican citizen, has petitioned the Supreme Court for a stay of execution, while a bill is pending in Congress that would give him the right to a hearing about the violation of his rights under the Vienna Convention on Consular Relations.  The justices should grant the stay to allow Congress to pass the law.  It would ensure that states are in compliance with the treaty, which requires that foreign nationals be told of their right to have their embassy notified of their arrest....

The Supreme Court is Mr. Leal’s last hope.  The court ruled in 2008 that Texas did not have to comply with the treaty because there was no federal law requiring states to do so. But Chief Justice John Roberts Jr. indicated that once Congress took up the treaty issue, it would be unjust not to allow a foreign citizen to have his case reviewed.

The solicitor general filed a brief supporting a stay because that would “serve compelling national interests.”  The Mexican government told the court a stay was “absolutely critical.”  Congress is in the process of fixing the gap in the federal law.  It would be a miscarriage of justice if the Supreme Court allowed Mr. Leal’s execution before Congress could complete that remedy.

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July 7, 2011 at 10:42 AM | Permalink


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See also, Medellin v. Texas, 129 S.Ct. 360 (2008)(available at http://scholar.google.com/scholar_case?case=15916831682858047592&hl=en&as_sdt=2&as_vis=1&oi=scholarr) in which DOJ (under Bush) tried almost exactly the same stunt, and lost.

There has been more than ample time for Congress to pass a bill on this. It hasn't and it isn't going to this time either. Indeed, such a bill has not even been INTRODUCED in the House, for the understandable reason that it would lose in a landslide (if it made it to the floor at all).

This is just another last-minute stunt by a killer who had more than ample time to raise the issue before now.

The other, and highly amusing, thing about this case is that the killer is a Mexican in name only. He moved to this country when he was two. That would be 34 years ago. To the best of my knowledge, he's been here ever sine. It would be amazing if he has even a memory of being in Mexico, much less any actual nexus to that country.

Posted by: Bill Otis | Jul 7, 2011 11:32:02 AM

"But Chief Justice John Roberts Jr. indicated that once Congress took up the treaty issue, it would be unjust not to allow a foreign citizen to have his case reviewed."

Anybody know what language in the Medellin decision that refers to? Looking back through it, I didn't find anything referring to a change in the law based on Congress merely taking up an issue, and I would be very surprised if the CJ said any such thing.

Posted by: Kent Scheidegger | Jul 7, 2011 11:42:14 AM

Kent --

You can stay unsurprised. As is becoming usual with the NYT, the claim about Roberts is just made up (which is the reason there's no quotation).

To the contrary, the Court said pretty much the opposite when Medellin, after losing the main case about the supposedly self-executing nature of the treaty, sought a stay using arguments eerily similar to those now before the Court.

In denying Medellin's stay, this is what the Court said, 129 S.Ct. 360 (2008)(per curiam):

"Petitioner seeks a stay of execution on the theory that either Congress or the Legislature of the State of Texas might determine that actions of the International Court of Justice (ICJ) should be given controlling weight in determining that a violation of the Vienna Convention on Consular Relations is grounds for vacating the sentence imposed in this suit. Under settled principles, these possibilities are too remote to justify an order from this Court staying the sentence imposed by the Texas courts. And neither the President nor the Governor of the State of Texas has represented to us that there is any likelihood of congressional or state legislative action."

Of course there is even less likelihood of enactment of such a statute now, with Boehner instead of Pelosi running the House, and Lamar Smith instead of John Conyers as Chairman of Judiciary.

But you have to hand it to the Times: All the news that's fit to fabricate.

Posted by: Bill Otis | Jul 7, 2011 12:50:17 PM

"it would be unjust not to allow a foreign citizen to have his case reviewed" This is the same NYT arguing for all the illegal aliens ...oops...undocumented persons to have the same rights and priviliges as US citizens. Except for when they are brought here by their parents at the age of two and know nothing about the country they came from. Wait I'm mixing up the DREAM Act logic and editorial with raping and killing an innocent girl. Sorry.

Now you know why the NY Times is going bankrupt.

Posted by: DeanO | Jul 7, 2011 3:40:16 PM

It has always fascinated me over the years how the anti-DP gang finds an inmate to rally for. This crime Leal committed was atrociously brutal. He would have received the death sentence even if the Mexican consulate had advised him.

Posted by: DaveP | Jul 7, 2011 3:52:46 PM

DeanO --

"Now you know why the NY Times is going bankrupt."


Posted by: Bill Otis | Jul 7, 2011 4:52:55 PM

"...All the news that's fit to fabricate."

As I recall the patently false, if not outright dishonest, Whitewater allegations against (then) candidate Bill Clinton churned up by the Times almost 20 years ago as well as the whole sordid Jayson Blair affair that followed a few years later, my only question is, "Bill, where have you been?"

Posted by: C | Jul 7, 2011 4:57:45 PM

C --

"Bill, where have you been?"

For six years, in that self-same Clinton administration (in DOJ). Lan' sakes alive!

But thanks for asking.

P.S. If you pointed to any reason to think that the NYT line to which Kent referred is NOT a fabrication, I must have missed it. Is there any?

Posted by: Bill Otis | Jul 7, 2011 5:06:06 PM

Cert denied. Per curiam 5-4.


Posted by: ih8tofly | Jul 7, 2011 6:26:56 PM

As ih8tofly notes, the application for a stay of execution has been denied by the Supreme Court. Absent (unlikely) invervention by Gov. Perry, the execution will go forward tonight.

The Solicitor General's amicus brief in support of Leal was a real piece of work, largely rooted in a dicey if not delusional view that a bill that hasn't passed Congress in seven years (indeed hasn't come close to passing) would magically pass in the next few months. One would expect better from the government's leading Supreme Court advocate.

Posted by: Bill Otis | Jul 7, 2011 6:44:36 PM

Scotus has spoken: His argument is foreclosed by Medellín v. Texas, 552 U. S. 491 (2008) (Medellín I), in which we held that neither the Avena decision nor the President’s Memorandum purporting to implement that decision constituted directly enforceable federal law. Leal contends that the Due Process Clause prohibits Texas from executing him while such legislation is under consideration. This argument is meritless. The Due Process Clause does not prohibit a State from carrying out a lawful judgment inlight of unenacted legislation that might someday authorize a collateral attack on that judgment.


Posted by: DeanO | Jul 7, 2011 6:49:50 PM

"...dicey if not delusional view that a bill that hasn't passed Congress in seven years (indeed hasn't come close to passing) would magically pass in the next few months."

I'd like to add not only has a bill not been passed in the 7 years since ICJ, and 3 years after Medellin, but a companion bill hasn't been filed in the House. If I remember correctly, a bill must pass both Houses of Congress before it is signed by the POTUS and becomes law.

I find it strange for the government to ask SCOTUS, or any federal court, to interpret not a law or regulation that exists, but a law or regulation that MIGHT someday exist.

Posted by: ih8tofly | Jul 7, 2011 6:55:56 PM

An excellent reference on the *Medellin vs. Texas* case (Supreme Court, 2008) is an article by Ted Cruz in *The Harvard Law Review* ('Defending U.S. Sovereignty, Separation of Powers, and Federalism in *Medellin v. Texas*'; January 1, 2010).

Another excellent reference exists at the UN Treaty website where the Vienna Convention Articles and the history of that convention are posted. Ironically when an advisory opinion about the relevant article (36) was issued in 1999 by the Inter-American Court of Human Rights, a notation included acknowledgment that interpretations of that article have "varied widely."

The history also suggests the initial focus on the convention was international trade/economics rather than anything to do with human rights. As the parties met over decades, provisions were drastically expanded according to various parties' political agendas.

Cruz breaks down the reasons the legislation Sen. Leahy is pushing is a dangerous bill of goods and he also explains why Bush and Obama have no grounds to interfere with a state criminal justice matter of this type.

I'm not an attorney, I'm just a writer. But I am horrified at the simplistic renderings many US media have presented the public regarding this case. US sovereignty and states' rights should not be taken lightly.

Cruz, in his article, references the justices' relevant questions regarding de-elevating US law via the world courts.

Aside from that, news accounts in 2003 depicted Mexico's concern about foreign nationals on death row as an attempt to abolish the death penalty in other countries and to gain political cred at home.

(Please note: I've never commented here before so I did not include links; I wasn't sure about the policy.)

Posted by: Kay B. Day | Jul 8, 2011 11:08:42 AM

Kay B. Day --

Ted Cruz is a longtime friend of mine. If Texas and the country are lucky, he'll win the nomination and the election, and be Texas's next U.S. Senator.

Thanks for your post.

Posted by: Bill Otis | Jul 8, 2011 7:02:17 PM

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